The Single Bench of Justice Rahul Bharti while deciding a Habeas Corpus Petition under Article 226 of the Constitution, detailed the “historicity of the judicial sensitivity and guidance” invested and accumulated in the long course of time by the Hon’ble Supreme Court of India through numerous judgments on the subject of preventive detention. The court observed that Habeas Corpus as a legal panacea has always remained a judge guarded and guided wherever and in whatever legal system it continues to be in service. It is for this reason that Writ of Habeas Corpus was celebrated in its description by Charlas James Fox in 1977 as “palladium of the liberties of the subject.” Law with respect to Habeas Corpus traces its definitive origin and evolution from 1600 AD onwards and taking seat in the Indian legal environment in 1861 with the creation of Indian High Courts.

The Court was seized of a matter wherein the Petitioner was put under preventive detention effected under the J&K Public Safety Act, 1978, on the ground that the petitioner’s personal liberty is prejudicial to the maintenance of “Security of the State‟. The detention order was challenged, inter-alia, on the ground of vague and sham grounds of detention.

Tracing the development of the law on the subject right from the case of “Ayya alias Ayub versus State of UP and another” [1989 AIR SC 364]wherein the Supreme Court summed up the handling of the personal liberty of an individual vis-à-vis preventive detention, to numerous other judicial pronouncements on subject of Personal Liberty and Preventive Detention, and noting the constitutional sanctity granted to the fundamental right to personal liberty under Article 21 of the Constitution, the Court laid stress on the need for “self-vigilance” by a Constitutional Court whenever on its “plenary jurisdiction front” under Article 226 of the Constitution of India, it is called upon to examine any given case of preventive detention of a person in search of his deprived personal liberty expecting and trusting it to be restored to him/her, as the case may be.

The Court further delved into the scope of judicial intervention into examining the vagueness of the grounds of detention framed and served by the detention order making authority. The Court, while drawing reference from various judgments of the Apex Court on the ground of vagueness of detention order, beginning with “State of Bombay versus Atma Ram Shridhar Vaidya [1951 SCC 43]”, observed, “the first filter test for a preventive detention order’s validity and legality is the grounds on which the given detention order rests. The legality or illegality of a preventive detention order, inter alia, first rests on the grounds of detention which portray the application of mind on the part of the detention order making authority, be it Government or the Officers authorized.”

It further observed, “Ground/s of detention, thus, is/are meant to exhibit and evidence on application of mind lending a subjective satisfaction to the authority passing a detention order and announcing to the petitioner as to what he has to respond and represent against.”

Noting the importance of the formulation of grounds of detention upon due satisfaction and not merely on surmises and ipsi dixit of the authority proposing and ordering the preventive detention but upon due satisfaction, the Court held, “If a non-objective situation presented by the law and enforcement authority seeking an identified person desired to be detained by preventive detention mode leads to the detention authority passing a preventive detention order against a given person, then the subjective satisfaction at the end of the preventive detention making/ordering authority is nothing but the supplementing of surmises.”

The court further observed, “the grounds of detention are reckoned to be fact stating and/or related for the sake of making it known to the detenu why and for what he is being detained and his right to represent against the basis of his preventive detention. A dossier by the sponsoring authority for seeking preventive detention of a person if obtained in the form of just name- calling against a given person without bearing supporting factual inputs will only lead to a detention order, if passed by the detention authority, against a person a very fragile detention order amenable to suffer quashment. The quashment of such a preventive detention order will be a declaration from the court that the fundamental right to personal liberty of a detenue has been infringed by the State and its authorities.”

In the case at hand, noting that the detention order against the Petitioner is seriously inflicted with fallacy and is without any factual basis, it observed, “A preventive detention gets vitiated in a case submitted by the sponsoring authority for seeking a preventive detention of a person before preventive detention making/ordering authority, where the facts are lacking, deficient, diversionary or illusionary.”

Accordingly, the Court quashed the detention order against the Petitioner and ordered him to be set free.